Citation NR: 9741663
Decision Date: 12/17/97 Archive Date: 12/19/97
DOCKET NO. 95-36 586 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
ATTORNEY FOR THE BOARD
W. H. Wetmore, Counsel
INTRODUCTION
The veteran served on active duty from September 1949 to
February 1952 and from September 1952 to April 1970.
The Board of Veterans’ Appeals (Board) received this case on
appeal from a June 1995 RO rating decision.
The appellant filed a notice of disagreement in February 1995
with a January 1995 letter notifying her that the evidence
did not establish that the veteran’s death was due to a
service-connected disability. The subsequent rating decision
in June 1995 was followed by a statement of the case. Her
substantive appeal was received in October 1995, accompanied
by a statement to the effect that the VA medical treatment
afforded the veteran since 1970 eventually resulted in his
being given medications by VA which were not compatible, so
that his heart disease was made worse due to this VA
treatment and such improper prescription of medication played
a role in his death.
The RO entered a rating decision in May 1996, denying the
appellant’s claim for dependency and indemnity compensation
pursuant to 38 U.S.C.A. § 1151 (West 1991) as not well
grounded. The appellant was advised of this determination by
way of a May 1996 letter and a supplemental statement of the
case issued in May 1996. The cover letter to this
supplemental statement of the case advised her, in effect,
that she would have to file a substantive appeal to the issue
of dependency and indemnity compensation pursuant to
38 U.S.C.A. § 1151 if she wanted to appeal this
determination. There has been no substantive appeal filed as
to the issue involving 1151 benefits. We further find that
the issuance of a supplemental statement of the case was
incorrect, because the appellant had not filed a notice of
disagreement with the May 1996 rating action. The issue of
entitlement to dependency and indemnity compensation pursuant
to the provisions of 38 U.S.C.A. § 1151 is not currently
before the Board for consideration.
The Board notes that the appellant was advised in March 1997
by the RO that although her power of attorney was technically
in favor of The American Legion, the North Carolina
Department of Veterans Affairs was also listed on the
appointment. She was informed that she had to execute a
power of attorney in favor of only one representative, and
that if the accompanying forms were not completed, it would
be concluded that she did not desire representation at this
time. The file does not reflect that the appellant has
appointed a single representative. Accordingly, the Board
will proceed on the record as currently constituted.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that service connection should be
established for the veteran’s ultimately terminal disease.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the appellant has not
submitted a well-grounded claim for entitlement to service
connection for the cause of the veteran’s death.
FINDING OF FACT
The claim of service connection for the cause of the
veteran’s death is not plausible.
CONCLUSION OF LAW
The appellant has not submitted a well-grounded claim for
entitlement to service connection for the cause of the
veteran’s death. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question in this case is whether the claim is
well grounded. “In order for a claim to be well grounded,
there must be competent evidence of current disability (a
medical diagnosis)...; of incurrence or aggravation of a
disease or injury in service (lay or medical testimony),...;
and of a nexus between the inservice injury or disease and
the current disability (medical evidence).” Caluza v. Brown,
7 Vet.App. 498 (1995). The Board points out that for the
purposes of determining whether a claim is well grounded, it
must presume the truthfulness of the evidence, “except when
the evidentiary assertion is inherently incredible or when
the fact asserted is beyond the competence of the person
making the assertion.” King v. Brown, 5 Vet.App. 19, 21
(1993).
Turning to the facts of this record, the Board begins by
noting that the veteran died on October [redacted], 1994, at age 62.
The certificate of death reflects that the underlying cause
of death was coronary artery disease. There was no autopsy
performed. The veteran died at his residence.
A review of the service medical records shows that there are
no notations of any findings or diagnoses indicative of a
cardiovascular disease.
During the veteran’s lifetime and at the time of his death
service connection was in effect residuals of a puncture
wound of the left hand evaluated as non compensably
disabling.
The veteran was hospitalized at a VA facility in January
1970. He underwent incision and drainage due to cellulitis
of the left chest wall. There was no clinical documentation
of heart disease.
He was hospitalized at a private hospital in March 1986 for
treatment of heart disease.
He was also hospitalized at a VA facility in March 1986. He
had a history of atypical chest pain since 1980 with no heart
attacks. This hospitalization was occasioned by his
developing transient episodes of third degree heart block.
He underwent testing. The diagnoses were transient third
degree atrioventricular heart block, transient ischemic
attack and atypical angina pectoris.
He was hospitalized at a VA facility from May to June 1986.
He underwent cardiac catheterization, left and right, and
coronary artery bypass graft surgery times three. He had a
history of angina since 1982, which had accelerated since
March 1986, following acute myocardial infarction complicated
by almost complete heart block and an episode of right
hemiparesis with aphasia and facial droop which almost
completely resolved within 24 hours. Cardiac catheterization
disclosed 95 percent occlusion or stenosis of three coronary
arteries.
He was hospitalized at a VA facility from November to
December 1986, where he underwent a left carotid
endarterectomy. The diagnoses included coronary artery
disease.
He was hospitalized at a VA facility in July 1988, where he
underwent a cranial computerized axial tomography study times
two. The discharge diagnosis was right cerebral subcortical
infarction.
He was hospitalized at a VA facility in October 1989. The
diagnoses were transient congestive heart failure with acute
myocardial infarction ruled out, coronary artery disease with
coronary artery bypass graft surgery times three, arterial
hypertension and left carotid endarterectomy in 1987.
He was hospitalized at a VA facility from February to March
1990. He underwent diagnostic testing, including a renal
biopsy. The diagnosed disabilities treated were renal
insufficiency, acute tubular necrosis, hypertensive
nephropathy, coronary artery disease, hypertension, ischemic
cardiomyopathy and proteinuria.
He was hospitalized at a private facility from March to April
1990. He was treated medically. The diagnoses were acute
pulmonary edema, congestive heart failure, malignant
hypertension, coronary artery disease, chronic renal
insufficiency, status post coronary artery bypass graft
surgery and hypokalemia.
He was hospitalized at a VA facility in January 1991, where
he underwent a cardiac catheterization. The diagnosed
disabilities treated were coronary artery disease, congestive
heart failure, status post myocardial infarction, status post
coronary artery bypass graft surgery, history of transient
ischemic attacks, hypertension, and hypercholesterolemia.
He was hospitalized at a VA facility in June 1991. He
underwent a carotid angiogram. The diagnoses were right
carotid artery stenosis with transient ischemic attacks,
hypertension, coronary artery disease, peripheral vascular
disease and history of congestive heart failure.
He was hospitalized at a VA facility from July to August
1991. He underwent a right carotid endarterectomy. The
diagnosed disabilities treated were right carotid artery
stenosis and transient ischemic attacks, hypertension,
coronary artery disease, congestive heart failure, peripheral
vascular disease, chronic obstructive pulmonary disease and
chronic renal failure.
He was hospitalized at a VA facility from December 1991 to
January 1992. No procedures were performed during this
hospitalization. The diagnosed disabilities treated were
coronary artery disease, history of transient ischemic
attacks, status post right carotid endarterectomy, severe
hypertension, chronic renal insufficiency,
hypercholesterolemia and peripheral vascular disease with
claudication symptoms.
He was hospitalized at a VA facility from May to June 1993.
He underwent testing. The diagnosed disabilities treated
were non-Q-wave myocardial infarction, coronary artery
disease, status post coronary artery bypass graft surgery,
chronic renal insufficiency, hypertension,
hypercholesterolemia and congestive heart failure.
It was reported in a March 1996 statement from a VA physician
that the veteran was last seen at a VA medical facility on
August 24, 1994. He had been considered stable and reported
then that he had only rare chest pain, primarily associated
with strong emotion or vigorous exertion. He had no
congestive heart failure symptoms at that time. He was
receiving antihypertensive and antianginal therapy at that
time.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131. Service connection may also be
granted for cardiovascular disease when it is manifested to a
degree of 10 percent or more within the first post service
year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1996).
Service connection for the cause of the veteran’s death may
be granted when a disability incurred in or aggravated by
service causes or contributes to death. 38 U.S.C.A. § 1310
(West 1991); 38 C.F.R. § 3.312 (1996).
The veteran is not shown by service medical records to have
had heart disease in service. He is not shown by post
service medical records to have had heart disease in the
first post service year. The appellant has submitted no
medical evidence linking the veteran’s fatal heart disease to
service or to a service connected disability. The second and
third requirements set forth in the Caluza case, supra have
not been met.
In view of the above, the Board concludes that the appellant
has not submitted evidence of a well-grounded claim for
entitlement to service connection for the cause of the
veteran’s death. There is no prejudice to the appellant in
denying the claim as not well grounded even though the RO
decision was on the merits, because the quality of the
evidence she “would need to well ground” her claim, or “to
reopen it would seem to be...nearly the same....” See
Edenfield v. Brown, 8 Vet.App. 384 (1995). Compare Bernard
v. Brown, 4 Vet.App. 384 (1993).
ORDER
Service connection for the cause of the veteran’s death is
denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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